The Employment Appeal Tribunal has held that a tribunal had failed properly to take into account the relevance of an employee being openly gay when considering whether discrimination and harassment on the grounds of sexual orientation had occurred (HM Land Registry v Grant).

Mr Grant, a homosexual man, worked at the Land Registry’s Lytham office, and after some time he chose to make his sexual orientation known to colleagues. Following a subsequent promotion he moved to a post at Coventry Land Registry where he alleged that his new line manager (who was aware of his sexual orientation) had sought to belittle him, cause him discomfort, and make life difficult for him, because of his sexuality. The tribunal accepted that six out of twelve complaints of discrimination, and five out of twelve of unlawful harassment, were made out. It found that none of the acts complained of, save possibly a "limp wrist" gesture made by his manager, was obviously and intrinsically discriminatory and that each finding relied on the validity of the others.

On appeal, the EAT held that the fact that Mr Grant was open about his sexual orientation amongst his colleagues was potentially material to whether not his sense of grievance at his manager's actions was justified. It also found that the tribunal had not expressed any clear view as to whether it thought that the manager’s actions sought to undermine the Claimant at work because of his sexuality, rather than just being clumsy and unnecessary comment. The EAT held that the tribunal needed to deal with these matters which were central to the issues, and its overall decision could not stand in the light of its failure to do so. The case was remitted to a fresh tribunal.

Impact on employers

  • The fact that an employee has disclosed their sexual orientation to some colleagues should not give others the right to use this information as they wish.
  • In general, it is not unreasonable to expect those who are gay, lesbian or bisexual to be fearful of the consequences of others knowing that fact, especially when they have no control over the release of the information. Employers cannot assume that a passing remark of a colleague which has the effect of “outing” a gay employee is necessarily so trivial that it leads to no legal consequences.
  • Employers should guard against permitting or condoning any comments or gestures which could, whether intentionally or not, have the effect of "outing" employees against their wishes to those they would rather not know, as this may, of itself, constitute an act of discrimination or harassment.